Robert O. vs Russell K.

Robert O. vs Russell K.

September 1992 – Robert O. vs Russell K.

Protected Adoptions Where The Biological Father Does Not Know Of The Pregnancy

Robert O.’s biological father came forward to void the child’s adoption ten months after it had taken place. He claimed he did not know that he had impregnated the birth mother and argued that she or the State had a duty to ensure he knew of the birth. We successfully upheld the adoption on behalf of the adoptive parents, the only parents the child had known, and secured all adoptions of children born out-of-wedlock where the biological father does not know of the pregnancy from being undone.

We argued, and the trial court, the Appellate Division, and New York’s Court of Appeals all agreed, that inasmuch as the biological father failed to take any steps to discover the pregnancy or the birth of the child before first asserting his parental interest more than 10 months after the adoption became final, he was neither entitled to notice nor was his consent to the adoption constitutionally required.

Robert O. is significant for the protection that it affords adoptive parents of a child born out-of-wedlock where the biological father is not known or does not know of the pregnancy. This case established that the unwed father’s “interest” is nothing more than the “biological parental interest” — i.e. the opportunity, of limited duration, to manifest a willingness to be a parent. The Court of Appeals made it clear that opportunity becomes protected only if grasped. The Court of Appeals also rejected the biological father’s claim that he did not receive Equal Protection of law:

"It is settled that the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child (Lehr v Robertson, supra, at 266-67). Nothing in the Clause precludes the State from withholding the privilege of vetoing an adoption from an unwed father who has never come forward to participate in the rearing of his child (Caban v Mohammed, 441 US 380, 392, supra). That ‘unknowing’ unwed fathers may be treated differently under the statute than other unwed fathers is not dispositive. Our Equal Protection inquiry does not focus on the abstract 'fairness' of a state law but on whether the statute’s relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment’ (Lalli v Lalli, 439 US 259, 272-273)."

We were successful in establishing that the unwed father had not met the burden of showing a lack of rationality in either the notice or the consent provisions of New York law. This child remained with the only parents he had ever known and the institution of adoption itself was substantially strengthened.

Sarah K.

Sarah K.

January 1985 – Sarah K.

Upheld Parental Consent For Adoption As Final

Sarah K. was a tragic case that pitted two couples against each other for custody of a child with Down’s Syndrome. Shortly after giving birth to Sarah K, her parents released her for adoption to another couple. About four months later, her birth parents attempted to revoke the consent they had given and regain custody of the child. They challenged the validity of both the statute governing private-placement adoptions (Domestic Relations Law § 115-b) and the consent forms they signed. We won the Family Court trial on behalf of the adoptive parents, but the Appellate Division reversed the decision and ordered Sarah K be sent to her birth parents. We persuaded New York’s highest court, the Court of Appeals in Albany, to suspend the removal of Sarah from the adoptive parents’ home while we pursued our appeal. Eventually the Court of Appeals agreed with us and reversed the Appellate Division:

“A parent’s consent to the release of a child for adoption has consequence in the law, and cannot invariably be undone at will. The law recognizes that consent implicates not only the very fundamental interests of birth parents, whose decision initiates the process, but also the child’s substantial interests in a stable, continuous home environment, and those of third parties, the adoptive parents, who but for the consent would not have become involved.”

If parental consent to release a child for adoption was never final, adoptions would be perpetually unstable. The Court recognized this:

“Neither emotional distress nor mistake is a ground for vitiating consent under Domestic Relations Law § 115-b (4). Release or surrender of a child for adoption is a traumatic event, heightened here by Sarah’s condition. But no consent, and surely no consent to the adoption of a handicapped child, could ever be relied on if it were revocable on such a basis.”

Adoptions in the State of New York remained secure, and Sarah K. remained with her adoptive parents, the only ones she had ever known.